High Court: Old statutory provision providing for detention orders for wards of court did not survive 2015 Act
The High Court has held that a previous jurisdiction for the detention of wards of court did not survive the commencement of the Assisted Decision-Making (Capacity) Act 2015. As such, it was held that the proper legal basis for a detention order relied on the inherent jurisdiction of the court.
About this case:
- Citation: IEHC 306
- Court:High Court
- Judge:Ms Justice Niamh Hyland
Delivering judgment in the case, Ms Justice Niamh Hyland held that section 9 of the Court (Supplemental Provisions) Act 1961 had to be read in a context of the new rules under Part 10 of the ADMCA. These new rules represented a clear legislative intention to alter the detention regime for wards of court. Having regard to the changes in the wardship regime, the court concluded that s.9 no longer included a power to make detention order in respect of existing wards.
The ward (KK) was born in 2003 and had been brought under the care of the Child and Family Agency (CFA) shortly after she was born. She presented with a borderline mild intellectual disability, low adaptive functions and a history of self-harm.
Prior to turning 18, wardship proceedings were instituted and interim detention orders were secured. She was taken into wardship in July 2020 and the General Solicitor was appointed as her Committee.
By July 2021, there was a reduced concern about the potential abscondence of KK and so the detention orders were discharged. However, in December 2021, there were further concerns as KK had met a man online who was acting aggressively.
Subsequently, in June 2022, the CFA secured a further detention order. The matter returned before the High Court in February 2023 when a further extension of the detention order was sought. However, this was not granted due to a lack of evidence provided by the CFA.
In April 2023, a doctor recommended that detention orders and orders restricting access to smartphones and social media be put in place. By the time the matter was returned before the High Court, the ADMCA had been commenced.
Under the old regime, section 9 of the 1961 Act provided a jurisdiction for detention orders for wards of court. However, Part 10 of the ADMCA phased out the wardship regime, providing that all wards were due to be discharged from wardship within three years. Further, the ADMCA required a review of all wards detained by order as soon as possible post-commencement date.
In this case, the significant changes imposed by the ADMCA required the court to reconsider its jurisdiction to make a new detention order in respect of KK. The CFA submitted that the section 9 jurisdiction had not been affected by the ADMCA, outlining that section 9 had not been repealed unlike the 1871 Act.
The CFA also outlined that section 56(2) of the ADMCA (the saver provision) provided for the continued application of the jurisdiction of the wardship court under section 9. As such, it was said that existing section 9 orders were to remain undisturbed until the discharge process was complete.
It was noted that KK was not detained on the basis of suffering from a mental disorder and, accordingly, she did not qualify under section 108(4) of the ADMCA for a review of her detention.
In summary, the CFA argued that there was no reason why the court could not make an order under section 9 of the 1961 Act for the detention of KK. The HSE, as notice party, submitted that sections 106-108 of the ADMCA did not materially amend section 9 (either expressly or by implication) and therefore the jurisdiction to make a detention order was unaffected.
Further, it was submitted that the court retained an inherent jurisdiction pursuant to Supreme Court authority to make a detention order. The HSE also relied on the deliberate importation of definitions from the Mental Health Act 2001 to Part 10 ADMCA, stating that the power to discharge a person was framed in a context of mental disorder rather than decision-making capacity.
The court began by analysing case law relating to wardship. Ms Justice Hyland stated that it was well-established that the wardship jurisdiction was not contingent upon the continuation of the 1871 Act (see In Re D  IR 449; AC v Cork University Hospital  2 IR 38).
The court went on to consider the legislative regime and the changes imposed following the commencement of the ADMCA. The court held that the review of wardship under sections 107/108 of the ADMCA were very similar in substance to those in the Mental Health Act 2001. In particular, the focus was on having a mental disorder rather than lacking capacity.
On close inspection, it was held that section 108 was focused on the discharge of those with a mental disorder from the wardship regime. The court also interpreted section 106 as requiring all persons with a mental disorder to be treated the same way, whether they lacked capacity or not.
It was also held that, while the saver provision could allow a court to continue to exercise the wardship jurisdiction over an existing ward, a person discharged from wardship could no longer be the subject of the Wardship Court.
Turning to the power to make detention orders after the commencement of the ADMCA, the court held that it was obliged to interpret the relevant statutory provisions pursuant to Heather Hill Management Company v ABP  IESC 43. This decision requires a court to consider inter alia, the language of the provisions, the relationship of the provisions to the statute as a whole, the legal context of the statute and the connection between the words and the discernible objective of the statute.
It was held that interpreting the statutes was “not an easy task” on the basis that there was a “very unusual wording and approach” to section 9. The court held that sections 56(2) and 9 did not identify a power to detain wards, albeit that section 9 had been treated as a source of power previously.
Further, Part 10 ADMCA had “radically altered” the jurisdiction under section 9. The aim of ADMCA was to end wardship and replace it with the assisted decision-making scheme. The message was clear: “wardship is on its way out.”
Reading section 9 in light of ADMCA, it was held that the jurisdiction to make new detention orders for wards did not survive the commencement of ADMCA. Any other interpretation would mean that the explicit changed wrought by Part 10 could be ignored by a court which was “obviously at odds” with the explicit terms of ADMCA.
The particular difficulty in this case was that KK was not covered by the section 108 procedure because no detention order was in place “immediately before the commencement” of the ADMCA, as required. She would therefore not be entitled to a review “as soon as possible” and would be placed in an inferior position to other wards.
This was a “very serious problem” as the new regime was not available to persons the subject of fresh detention orders under section 9. As such, the court held that the section 9 jurisdiction to detain a ward did not survive the commencement of ADMCA.
Instead, the court could exercise an inherent jurisdiction to make orders in respect of persons lacking capacity to vindicate their personal rights (HSE v J O’B (A Person of Unsound Mind Not So Found)  2 ILRM 433; HSE v VF  3 IR 305). This included making order for detention.
The court held that it did not have jurisdiction to make an order for the detention of KK pursuant to section 9 of the 1961 Act as it did not survive the enactment of the ADMCA. The court retained an inherent jurisdiction to make a detention order.
The court would hear further submissions on the appropriateness of making a detention order on the basis of the inherent jurisdiction of the court.
In the Matter of KK  IEHC 306